A federal judge in Arizona ruled late Tuesday that Trump administration officials involved in the 2017-2018 policies that separated thousands of immigrant families at the southern border cannot be prosecuted over those policies.
At the same time, the judge, appointed by Trump, rejected the federal government’s request to dismiss a lawsuit seeking damages for families affected by the policies.
The decision comes as the Biden administration has not taken action against officials or investigated the Trump administration’s implementation of what it has called “zero tolerance,” although as a presidential candidate, Joe Biden has called the secession “criminal.”
The Justice Department was in negotiations with attorneys representing separate immigrant families, but after news emerged that payments could reach $450,000, and Biden denied the figure at a press conference, talks broke down.
Now, plaintiffs’ attorneys will be able to make a discovery and move forward with seeking payments to the families.
The ACLU estimates that more than 5,000 families were separated from mid-2017 through June 2018 as part of the Trump administration’s “zero tolerance” policy and says nearly 1,000 families could still be separated.
Trump officials, including Senior Counsel Stephen Miller, Homeland Security Secretary Kirstjen Nielsen, Attorney General Jeff Sessions and White House Chief of Staff John Kelly, were among those the ACLU and other groups sought to sue on behalf of separated families.
Justice John Henderker said in his opinion that the Supreme Court places limits on the prosecution of executive branch officials to avoid interfering with the power of other branches. He also noted that Trump officials were exercising their discretionary powers of attorney general within the confines of US immigration law.
The Trump administration ran a pilot program involving family separation in 2017 and then imposed a “zero tolerance” policy along the entire border for several months in 2018. The policy has systematically referred all immigrants who illegally cross the border to criminal prosecution, no matter what. Whether the migrants were traveling with their children or did not commit violent crimes. Referrals have resulted in thousands of family separation cases.
Usually, crossing the border illegally on its own is considered a misdemeanor and is dealt with in immigration court. Unlike in federal court, an immigration court appearance does not require parents to be locked up separately from their children.
Lee Gilert, an attorney for the lead plaintiffs in the ACLU case, said his side would appeal the portion of the ruling that dismissed the lawsuits against Trump officials.
“We will appeal this part of the ruling because there must be accountability through civil procedures because the Biden administration has not held hearings or taken other actions to hold those responsible to account, even though President Biden has described the practice of family separation as a crime. In fact, the Department of Justice chose Biden is representing Trump officials rather than trying to hold them accountable.”
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